For Better or Worse: 5 Things You Need to Know About an Ante-Nuptial Contract

With the divorce rate in South Africa on the rise, it’s essential to protect yourself with an ante-nuptial contract if your marriage should fizzle out.

 

We don’t want to be the ring bearer of bad news, but the South African divorce rate increases every year, and it’s always best to subscribe to the ever-green adage: “Prevention is better than cure.” That’s why, in addition to the dress, marzipan-covered cake and lavish venue, it’s important to add an ante-nuptial contract (ANC) to your wedding planning essentials. Yes, there are a lot of to-dos before you say, “I do.”

In fact, according to the latest Stats SA report, there’s been an increase in civil unions and customary marriages along with an uptake in divorces around the country.

 

What is an Ante-nuptial Agreement?

 

An ante-nuptial agreement (also known as a prenuptial or premarital agreement) is a written contract between two people who are about to get married or commit to a civil union. The agreement sets out the terms of possession of assets, treatment of financial earnings during the marriage, control and ownership of property and how things will be split if the marriage comes to an end or your spouse passes away.  In short, it’s all about protecting your rights as an individual and simplifying things in an emotionally taxing split.

That should already give you some idea of just how important this agreement is, but let’s break it down a little bit more.

 

5 Things You Need To Know About  an Ante-nuptial Contract:

 

  1. Should you decide NOT to sign an ANC, you will automatically marry IN community of property. This means that everything you own as a couple (including the debt you built up before tying the knot) is put in a joint estate. Any assets or cash that’s obtained after the wedding will also be added to the joint estate. Not everyone likes to share.
  1. Signing an ante-nuptial means, you will marry OUT of community of property. You and your spouse will be seen as individuals within your union.  From a legal perspective, this means what’s yours is yours, and the same applies to your spouse.

    With the contract in place, you and your spouse will keep your own assets and liabilities. There is no sharing of profits or losses, whether acquired before OR after the marriage. Unless, you specifically choose the accrual system in the contract, which means there is room for you and your spouse to build and share assets within the marriage. The most important aspects of “accrual marriages” are as follows:

    – The financial value of the smaller estate is subtracted from the financial value of the more substantial estate, and the difference is split.

    – Should things go south in the relationship, the estate of each spouse is determined by listing all assets and liabilities and subtracting the latter from the former to arrive at net asset value.

    – Unless specified otherwise in the ante-nuptial contract, any inheritances, legacies or gifts that either spouse has obtained during the marriage will not be divided as part of the accrual.

  1. It’s vital for you and your spouse to agree on the lawyer (who needs to be a registered notary, by the way) who ’s drawing up the ANC. It can be a stressful and technical process, so your lawyer needs to be neutral and clued up.
  1. Of course, you can change your matrimonial property regime after you get married by drawing up what is known as a Notarial Agreement AFTER marriage. It is more expensive, and you will need a good lawyer to guide you through the process. Keep in mind; this is can only be done through a costly court process. For the court to grant an order for the change in marital regime, it must be satisfied that:

    – Good reasons for the proposed change must exist;
    – Sufficient notice of the proposed change must be given to all creditors as well as the Registrar of Deeds; and
    – No other person will be prejudiced by the change of the marital property system.

In our ongoing mission to provide affordable and accessible legal services for all, we’ve included cover for ante-nuptial contracts in our Platinum and Platinum Plus policies.  Additionally, should a policy not cover this, we offer all our clients a referral to one of our expert Panel of Attorneys at a substantially discounted rate.


Want to be more informed about legal agreements? Here are 5 Things You Need to Know Before Signing a Contract.

 

 

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